Posts Tagged ‘Second Circuit’

Concurring in a Second Circuit opinion declining to overturn an insider trading conviction in the case of U.S. v. Walters, Judge Dennis Jacobs points out “egregious” FBI leaks and “notices the irony that Walters and the FBI agent both apparently misused confidential information, but that only one of them is going to jail.” [Ira Stoll, Future of Capitalism]

At least since 1958’s NAACP v. Alabama, it has been thought settled that state demands for the disclosure of private organizations’ membership and donor lists poses very real risks of First Amendment infringement to which courts must be sensitive. Recent years, however, have seen concerted efforts to strip anonymity from donors to at least some non-profit groups with a policy emphasis. One danger — or feature, from the standpoint of some groups doing the campaigning — is that if target groups can be made to divulge such information, their supporters can be exposed to pressure, shaming, and public and private retaliation.

Kamala Harris, then Attorney General of California and now Senator from that state, did not fare well in court in such a campaign while in state office, but New York’s left-leaning Attorney General Eric Schneiderman seems to be enjoying better luck in a similar push. A Second Circuit panel has ruled in favor of his demands for the donor lists of Citizens United, the conservative group whose role in a landmark First Amendment case at the Supreme Court has made it, along with that case, “the Emmanuel Goldstein of the American left.” It will not be surprising if the Supreme Court is soon asked to reaffirm the protections of NAACP v. Alabama. [Trevor Burrus and Reilly Stephens, Cato, and thanks for mention; see also my April 2016 Cato piece]

“It’s been two years since the NLRB determined that section 7 of the National Labor Relations Act protected an employee’s profanity laced Facebook rant simply because he ended it with a pro union message. I held out hope that the court of appeals would see the folly in the decision and send a clear message to employees and employers that such misconduct remains a terminable offense. NLRB v. Pier Sixty (2nd Cir. 4/21/17) dashed that hope.” [Jon Hyman] More: Nixon Peabody, Eric Goldman.

Or, Prof. Bagenstos headlines it at Disability Law, “Second Circuit Holds Timely Arrival at Work Not Necessarily an Essential Job Function.” Reversing a summary judgment in favor of the employer, the judges found that a schizophrenic case worker whose medication caused morning drowsiness was entitled to a trial on his claim that he could have accomplished the job by working extra to make up for time missed early in the day. [McMillian v. City of New York; Disability Law; Paul Mollica, Outten & Golden]

Get ready for the cognitive dissonance among many on both left and right: Second Circuit chief judge Dennis Jacobs, long a favorite of the Federalist Society (and of mine), has written the opinion striking down section 3 of the Defense of Marriage Act (DOMA) in Windsor v. U.S. I have more at my Maryland for All Families blog.

“Let’s Regulate Harder. That’ll Provide More Jobs For Young Law Grads!” [my new Cato post, citing an official from the Society of American Law Teachers (SALT)]

ABA accreditation rules discourage reliance on less expensive (and often more practice-oriented) adjunct faculty [latest in David Segal series on law schools in New York Times; Catherine Dunn, Corporate Counsel] Plus: video of law school accreditation panel at Federalist Society national convention;

A Second Circuit panel, reversing the district court judge, says a suit against utilities can go forward characterizing carbon dioxide as a nuisance. [American Lawyer, Point of Law first, second, third posts]